D.D.C.: There’s a right of public access to old pen register and SCA orders where no ongoing investigation would be compromised

In a 102 page opinion, with the agreement of the USAO, the D.D.C. finds a limited right of access in old sealed pen register orders and SCA orders and unseals those that will not compromise ongoing investigations. There is an inherent right of access to these records under the First Amendment and at common law. The case was brought by James Leopold, an investigative journalist with Buzzfeed News. In the Matter of the Application of Leopold to Unseal Certain Electronic Surveillance Applications and Orders, 2018 U.S. Dist. LEXIS 30211 (D.D.C. Feb. 26, 2018):

II. DISCUSSION

“The right of public access is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017). “[D]istrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.” In re Oliver, 333 U.S. 257, 268-69 (1948) (footnotes omitted). James Madison warned that “[a] popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy: or perhaps both. … A people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” Metlife, Inc., 865 F.3d at 665 (quoting Letter from James Madison to W. T. Barry, Aug. 4, 1822, in 9 The Writings of James Madison 103 (Gaillard Hunt ed. 1910)).

“The public right of access [thus] is undisputed in both its importance and its historical pedigree.” United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997). “Public access serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness.” Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988)). Unlike”[t]he political branches of government,” which “claim legitimacy by election, [a] judge[']s” legitimacy derives solely “by reason.” Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification.” Id. “Although the right [of public access] is not absolute, there is a strong presumption in its favor, which courts must weigh against any competing interests.” Metlife, Inc., 865 F.3d at 663.

“The right of public access” to judicial proceedings and records “springs from [both] the First Amendment and the common-law tradition” that such proceedings and records “are presumptively open to public scrutiny.” Doe, 749 F.3d at 265; see In re U.S. for an Order of Nondisclosure Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena # GJ2014031422765, 41 F. Supp. 3d 1, 7 (D.D.C. 2014) (“The First Amendment or the common law provides the legal basis for the public’s right of access to court records, depending on the particular court records at issue.”). “[T]he right of public access, whether arising under the First Amendment or the common law, ‘may be abrogated only in unusual circumstances.’” Doe, 749 F.3d at 266 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988)); cf. EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (“[T]he starting point in considering a motion to seal court records is a strong presumption in favor of public access to judicial proceedings.” (internal quotation marks omitted)). Different analytical frameworks apply to claimed rights of access established by the First Amendment and the common law, respectively. Those legal frameworks are discussed first, followed by a brief examination of the statutes authorizing the government surveillance applications and orders at issue, and then an analysis of the petitioners’ requested relief, both prospectively and retrospectively.

A. Legal Framework

1. First Amendment Right of Access to Judicial Records

Courts utilize a two-step framework to assess the validity of a claimed First Amendment right of access. See Press—Enter. Co. v. Superior Court of Cal. for Riverside Cty. (“Press-Enter. II”), 478 U.S. 1, 8-9 (1986). The inquiry’s first step, sometimes called the “experience and logic” test, is to determine whether a qualified right of access exists. Id. at 9. “The public possesses a qualified First Amendment right of access to judicial proceedings where (i) there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a significant positive role in the functioning of the proceeding.” United States v. Brice, 649 F.3d 793, 795 (D.C. Cir. 2011) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)).

The inquiry’s second step is to determine whether an “overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest” nonetheless trumps any qualified right of access that attaches. Press-Enter. II, 478 U.S. at 9 (quoting Press-Enter. Co. v. Superior Court of Cal. (“Press-Enter. I”), 464 U.S. 501, 510 (1984)). “Where there is a First Amendment right of access to a judicial proceeding, the ‘presumption of access can be overridden only if (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.’” Brice, 649 F.3d at 796 (quoting Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991)).

The Supreme Court has applied the First Amendment right of access not only to criminal trials, see Richmond Newspapers, Inc., 448 U.S. at 573, but also to “judicial proceedings that are part of the criminal trial process,” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 935 (D.C. Cir. 2003); see Press-Enter. I, 464 U.S. at 505 (criminal voir dire); Press-Enter. II, 478 U.S. at 13 (criminal preliminary hearings, as “conducted in California”). “[M]ost circuit courts,” moreover, “have recognized that the First Amendment right of access extends to civil trials and some civil filings.” ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting decisions).

2. Common Law Right of Access to Judicial Records

The common law also provides a right of access “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). Determining “whether a document must be disclosed pursuant to the common law right of access involves a two-step inquiry.” Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 902 (D.C. Cir. 1996). “First, the court must decide whether the document sought is a ‘public record.’” Id. (internal quotation mark omitted). Second, “the court should proceed to balance the government’s interest in keeping the document secret against the public’s interest in disclosure.” Id. (internal quotation mark omitted).

Courts weigh six “generalized” factors, enumerated in United States v. Hubbard, and any relevant “particularized” factors in determining “the precise weight to be assigned … to the always strong presumption in favor of public access to judicial proceedings.” 650 F.2d 293, 317 (D.C. Cir. 1980). The Hubbard test is the D.C. Circuit’s “lodestar because it ensures that we fully account for the various public and private interests at stake.” Metlife, Inc., 865 F.3d at 666 (collecting citations). The six generalized Hubbard factors are “(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.” Id. at 665 (quoting Nat’l Children’s Ctr., Inc., 98 F.3d at 1409).

Hubbard makes clear, however, that these generalized interests do not exhaust the considerations that a court weighs in determining whether to unseal documents, and that a court also must consider such particularized interests as specific contexts make relevant, where the generalized factors do not adequately account for such particularized interests. See Hubbard, 650 F.2d at 323 (“To be weighed against the particularized reasons which may justify public access are the particularized privacy or other interests. . . defendants may assert.”), 324 (recognizing that a court may, in proper circumstances, determine disclosure’s propriety “on the basis of the ‘particularized’ factors” even where “analysis of the generalized interests at stake” suggest a different outcome). A court’s ultimate task, in applying the Hubbard factors, is to “consider[] the relevant facts and circumstances of the particular case, … weigh[] the interests advanced by the parties in light of the public interest and the duty of the courts,” and reach a “conclu[sion]” as to “[w]hat justice so requires.’” Metlife, Inc., 865 F.3d at 665-66 (quoting In re Nat’l Broad. Co., 653 F.2d 609, 613 (D.C. Cir. 1981)).

. . .

In sum, five of six Hubbard factors, including the “single most important” such factor, id.—need for public access to the documents at issue, fact of objection and objector’s identity, strength of any property and privacy interests asserted, possibility of prejudice, and purposes for which the documents were introduced—weigh in favor of prospective disclosure of PR/TT, § 2703(d), and SCA warrant matter docket information, while one factor—the extent of previous public access to the documents—has limited applicability. The Court thus concludes, considering the Hubbard factors together and as applied to the recently adopted administrative changes in the USAO and this Court’s Clerk’s Office, that the common law affords the petitioners a prospective right of access to the PR/TT, § 2703(d), and SCA warrant matter docket information. The precise scope of such relief, which a recently-adopted Memorandum of Understanding (“MOU”) between the Clerk of the Court and the USAO will more than provide, is discussed infra Part II.D.

. . .

Conclusion

In this case, the sealed judicial records at issue are sensitive government applications seeking authorization to collect, for use in ongoing criminal investigations, certain types of information about electronic and telephonic communications. The parties are in agreement that information in these sealed judicial records implicate myriad considerations, including the sensitive personal privacy and reputational interests of the customers or subscribers, about whom the information was sought; important public safety and law enforcement interests in avoiding any disruption of, or loss of evidence in, ongoing criminal investigations; and, finally, the Court’s interest in ensuring the administrative feasibility of providing meaningful, rather than misleading, information and imposing no more than manageable burdens on the Clerk’s Office and the USAO. These weighty interests of protecting privacy and public safety, and providing additional transparency for these sealed judicial records in an administratively workable manner, exist in significant tension with providing the public access sought by the petitioners. Nonetheless, this Court has striven to articulate a common law right of access to sealed judicial records regarding the government’s exercise of statutory surveillance authorities that strikes a workable balance.

To that end, while the First Amendment extends no right of access to these judicial records, the Court identifies a prospective right of access, due to the significant administrative and operational reforms undertaken in tandem by the Clerk’s Office and the USAO, to certain categories of information, which will be disclosed on a periodic basis, regarding the total number of PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of accounts that such applications target, the names of the providers to which these applications are directed, and the primary criminal offense under investigation for these applications. The prospective right of access articulated here is designed to minimize any risk of revealing information about ongoing law enforcement investigations or the individuals targeted, but will enable the public to know, albeit on a limited basis, more about what this Court is doing in reviewing these types of surveillance applications. No retrospective right of access is recognized, in consideration of the significant administrative burdens that retrospective disclosure would impose on the Clerk’s Office and USAO.

For the foregoing reasons, the petitioners’ petitions to unseal are granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).

"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]

“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew

"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)